Wednesday, March 31, 2010

A Senate budget proposal in Florida to replace some state prisons with new privately-run ones would lead to such overcrowding that inmates would be released early from prison.

The bill and attached amendments would require the department of Corrections to privatize an unidentified 1,350-bed prison, saving the state about $14 million, and turn over an additional 1,463 work-release beds to private interests at Orlando's Central Florida Reception Center, the South Florida Reception Center and other facilities in Columbia County and in Gainesville — saving a reported $8.2 million according Palm .

The Senate proposals would also mean not filling 2,249 vacant positions within the corrections department, which would force the closing of five state-run prisons. That in turn would mean having to release 2,519 prisoners early to comply with a federal court order preventing prison overcrowding.

Florida has 103,915 the third largest prison population in the country, behind only California and Texas. Florida was one of only 23 states to increase its prison population in 2009. In fact, Florida had the second largest increase in actual prisoners behind only Pennsylvania.

Tuesday, March 30, 2010

The U.S. Supreme Court is scheduled to hear arguments today on a sentence out of the Federal Court for the Western District of Pennyslvania. According to the Pittsburgh Post-Gazette, Judge Alan N. Bloch sentenced Percy Dillon for selling crack and powder cocaine in 1993.

"I don't say to you that these penalties are fair. I don't think they are fair," Judge Bloch said at the time. "I think they are entirely too high for the crime you have committed even though it is a serious crime."

In 2008,Dillon submitted a motion to get his sentence reduced under a newly enacted amendment designed to address the inequity between powder and crack cocaine guidelines.

Federal prosecutors will argue today before the Supreme Court that the proceedings to reduce crack penalties are not resentencings -- which fall under the findings of United States v. Booker, 543 U.S. 220 (2005) and require full hearings and defense counsel -- but only a modification.

In its brief, the Department of Justice wrote that the crack reductions are a "one-way ratchet to lower a defendant's otherwise-final sentence.

"Were this court to accept the proposition that district courts must be granted unlimited discretion to make sentence adjustments [in crack] proceedings, every retroactive guidelines amendment would carry the potential to reopen thousands of sentences."

Thus far, 23,000 defendants have sought reductions and 15,000 have been granted, resulting in an average decreased prison time of 25 months, the government said.

The U.S. Sentencing Commission argued in a brief in support of the government that changing the scope of sentence reductions would weigh against making similar guideline amendments retroactive in the future, in part because of the administrative burden that would come with it.

Monday, March 29, 2010

There is a renewed urgency to abolish life without parole (LWOP) for juveniles. In the last several weeks The New York Times, among other outlets, have called for a halt in sending juveniles to prison for life with no hope of parole. With mounting public pressure, policymakers would do well to proceed with caution.

Life without parole is not unlike the death penalty. Paul Wright, a former lifer, told The New York Times, “It’s a death sentence by incarceration. You’re trading a slow form of death for a faster one.” Only three years ago the United States Supreme Court banned the execution of juveniles. The decision in Roper v. Simmons resulted in the commutation of 72 juvenile death penalties; a significant majority of those juvenile offenders were re-sentenced to LWOP.

When the U.S. Supreme Court made the landmark decisions in Roper as well as Atkins v. Virginia, banning the execution of the mentally retarded, the justices cited “evolving standards of decency.” In the analysis of evolving standards of decency the court considers the action of state lawmakers to establish a national consensus. When Atkins was argued, 30 states had banned the execution of the mentally retarded. When Roper was argued, the same number of states had banned the execution of juveniles. Today only eight states have banned LWOP for juveniles. California is considering a bill that would eliminate LWOP and limit juvenile sentences to 25 years to life. Michigan, Illinois, Nebraska and Florida are considering similar legislation, which would make a significant number but not a national consensus.

At the time of the Atkins and Roper decisions death penalty abolitionist argued that LWOP was an appropriate alternative sentence to the death penalty. Today, the same arguments made to abolish the death penalty are being incorporated into the argument against LWOP for juveniles.

Juvenile’s brain

Those who are advocating for the end of juvenile LWOP often cite research suggesting that the juvenile brain is not yet fully developed. Supreme Court Justice Anthony M. Kennedy wrote in Roper that juveniles are cognitively immature and therefore less culpable. The brain development argument is being used with more frequency in courtrooms across the country.

The juvenile criminal court system is distinctly different from the adult criminal court system. The juvenile system is not punitive. The focus is on rehabilitation and is oriented toward the treatment of young offenders. However, it has been suggested that some young offenders are not amenable to treatment and are so dangerous that only a lifetime of incarceration would protect the public.

Justice Kennedy wrote in Roper, “It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” He goes on to write that it is impermissible to render an opinion about antisocial disorders in offenders under age 18. That is precisely the point; the diagnosis should be made after the age of 18 with the ability to keep that rare offender with “irreparable corruption” from harming another innocent person.

LWOP for juveniles convicted of first degree murder should be an option for judges, not a mandatory requirement. Sentences, especially for juveniles charged as adults, should be specifically tailored for each individual offender. This could be effectuated by giving judges the discretion that legislatures rushed to take away when getting “tough on crime.”

A juvenile sentenced to LWOP need not be doomed to a lifetime of hopelessness. Governors across the country have the ability to grant clemency. The pardon is a long accepted method of invoking fairness and justice.

States would do well to follow the lead of Colorado and establish juvenile clemency boards. The board would be charged with reviewing antisocial disorders in offenders now over the age of 18 who were sentenced to LWOP as juveniles. The legislature could establish parameters for consideration and guidelines for recommending clemency to the governor.

The question is not whether some violent juvenile offenders deserve to be locked away for life, but rather, do law abiding citizens deserve the protection that total incapacitation of dangerous offenders affords. Policymakers should not blindly rush to abolish an appropriate sentencing option, without first considering judicial discretion and executive authority.

X Matthew T. Mangino is the former district attorney of Lawrence County. He is a featured columnist for the Pennsylvania Law Weekly. He can be reached at matthewmangino@aol.com)

Only days into the New Year a 12 year-old Florida boy was arrested for the murder of his 17 month-old cousin. He beat the toddler to death with a baseball bat. The boy told police the victim, a little girl, was making noise while he watched a cartoon on television. If the state’s attorney had decided to charge the boy as an adult and he was convicted of first degree murder the court would have been required to impose a sentence of life in prison without the possibility of parole (LWOP). Although the boy was not charged with first degree murder, the prospect of a 12 year-old boy being sentenced to LWOP has rekindled the debate about sentencing juveniles as adults. Life without parole is not unlike the death penalty. Paul Wright, a former lifer, told the New York Times, “It’s a death sentence by incarceration. You’re trading a slow form of death for a faster one.” Only three years ago the United States Supreme Court banned the execution of juveniles. The decision in Roper v. Simmons resulted in the commutation of 72 juvenile death penalties; a significant majority of those juveniles on death row were re-sentenced to LWOP. In the last several months, articles in the New York Times, Chicago Tribune, and Detroit Free Press have written about halting the practice of sending juveniles to prison for life with no hope of parole. The USA Today recently published an op-ed calling for reform in sentencing juveniles. With mounting public pressure, policy makers would do well to proceed with caution. The surge in juvenile LWOP sentences is a relatively new phenomenon. Prior to 1980, juveniles sentenced to LWOP were extremely rare. As violent crime rates soared in the 1980’s the rallying cry in state legislatures across the country was “adult crime, adult time.” Criminologists warned of the “superpredators;” those uber-violent juveniles without remorse who kill at will. Forty-two states authorize sentencing juveniles to LWOP. Fourteen states allow a minor to be tried as an adult at any age. Pennsylvania is one of those states and also leads the nation in juveniles serving LWOP. Pennsylvania has at least 330 offenders who were sentenced to LWOP as juveniles. Across the country more than 2,250 offenders are serving life sentences in adult prison for crimes committed as minors. When the U.S. Supreme Court made the landmark decisions in Roper as well as Atkins v. Virginia, banning the execution of the mentally retarded, the justices cited “evolving standards of decency.” In the analysis of evolving standards of decency the court considers the acts of state lawmakers to establish a national consensus. When Atkins was argued, 30 states had banned the execution of the mentally retarded. When Roper was argued, 30 states had banned the execution of juveniles. Today, only eight states have banned LWOP for juveniles. In 2006, Colorado became the most recent state to repeal juvenile LWOP. How did Pennsylvania become the nationwide leader in locking away juveniles for life? Following former Governor Tom Ridge’s special legislative session on crime in 1995, juvenile law changed dramatically. Most significant was the change in charging juveniles as adults. Prior to 1995, district attorneys had to request “certification” from the court to charge a juvenile as an adult. Today, district attorneys must charge a juvenile as an adult for specific offenses and the juvenile can request “decertification” to juvenile court. According to the Pittsburgh Post-Gazette the number of juveniles committing murder nationwide dropped by nearly 55 percent between 1990 and 2000, yet the percentage of juveniles receiving LWOP increased by 216-percent. Fifty-nine percent of juveniles serving life had no previous criminal record and one in four were convicted of felony murder. The offender may have been a getaway driver, lookout or an accomplice in a robbery gone bad. Felony murder holds all offenders involved to the same level of responsibility as the primary perpetrator. California has also been prodigious in imposing life sentences on juvenile offenders. A juvenile charged and convicted of murder as an adult with any of a long list of special circumstances can be sentenced to LWOP. There are currently 227 juveniles serving LWOP in California. California is considering a bill that would eliminate LWOP and limit juvenile sentences to 25 years to life. California is not alone. Illinois, Florida, Nebraska and Michigan are also considering similar legislation, a significant number but not exactly a national consensus. A case in Rhode Island points to the consequences of having inadequate options with regard to sentencing dangerous juvenile killers. In 1987, thirteen-year-old Craig Price murdered his neighbor. He stabbed her 58 times. Two years later, Craig stabbed and murdered Joan Heaton and her eight and ten-year-old daughters. At the time in Rhode Island children charged with a crime under 16-years-of-age could not be transferred to adult court. Although Price nonchalantly confessed to the four murders he could not be held beyond the age of 21. Rhode Island had two juvenile lifers; both were over the age of 16 when they committed their offense. The law in Rhode Island has since been amended to address juveniles under the age of 16 who kill. Many involved in Price’s prosecution argued that he was a dangerous serial killer and should be locked up for life. They fought to keep Price in prison where he remains today. The latest maneuver to keep Price in prison was a contempt of court sentence of 25 years for failure to submit to a court ordered psychiatric evaluation. Lionel Tate was a twelve -year-old Florida boy who, in 1999, was convicted of first degree murder and sentenced to life in prison. Tate brutalized a six year-old girl, later arguing he accidentally caused her death while imitating wrestling moves. He spent five years in prison. In 2004, a Florida appellate court overturned his conviction on grounds that his competency had not been properly evaluated before his trial in 2001. He later pled guilty to second degree murder and was sentenced to 10 years probation. He was released to his mother four days before of his 17th birthday. According to The New York Times, Tate’s lawyer said the teenager “posed no risk of flight or danger.” Within months Tate was cited for violating his probation. He was out after curfew and armed with a knife with an eight-inch blade. Fourteen months later, armed with a gun, Tate robbed a pizza delivery man. He received a 30 year sentence for his latest probation violation. He recently pled guilty to armed robbery. With all the notoriety and the outcry for Tate’s release, he could have ended up right where he started, and perhaps where he belongs, in prison for life. Abolishing juvenile LWOP eliminates an appropriate sentencing option in some cases. In Pennsylvania, LWOP for juveniles convicted of first degree murder should be an option not a mandatory requirement. Sentences, especially for juveniles sentenced as adults, should be specifically tailored for each individual offender. Judges in Pennsylvania should have discretion to sentence juveniles to something other than LWOP following a conviction of first degree murder. The idea in Pennsylvania that the juvenile lookout in a robbery gone badly should receive the same sentence as a juvenile serial killer doesn’t make good sense or good law. A juvenile sentenced to LWOP need not be doomed to a lifetime of hopelessness. The governor has the ability to grant clemency. Pennsylvania should follow the lead of Colorado and establish a juvenile clemency board. The board would be charged with the unique process of reviewing offenders who were sentenced to LWOP as juveniles. The legislature could establish parameters for consideration and guidelines for recommending clemency to the governor. A solid approach to reconsidering LWOP for juvenile killers would include due consideration of public safety. This is not just a question of whether some violent juvenile offenders deserve to be locked away for life, but rather, do law abiding citizens deserve the protection that total incapacitation of dangerous offenders affords? Policy makers should not abolish LWOP without first deliberating the merits of judicial discretion and executive authority as appropriate corrective measures. (Matthew T. Mangino is the former district attorney of Lawrence County. He can be reached at matthewmangino@aol.com)

Lawrence County Judge Dominick Motto has given the green light to prosecutors who are pursuing Jordan Brown as an adult for the murder of his father's girlfriend. Judge Motto found that Brown would not be amenable to treatment within the nine years he would be under the jurisdiction of the juvenile courts if tried as a juvenile.

If convicted of first-degree murder, Brown faces life in prison. According to the Pittsburgh Post-Gazette, he would become the youngest person in the United States to serve a mandatory life sentence in prison without parole.

Brown was 11 years old when he allegedly shot his father's girlfriend. She was pregnant and asleep when she was shot in the head with a 20-gauge shotgun. In denying the defendant's request to transfer the case to juvenile court, Judge Motto wrote, "(The) defendant . . . killed his father's fiancee who was 8 1/2 moths pregnant, by administering a shotgun blast to the head. The evidence further shows that the defendant acted alone and without provocation from the victim. Further a degree of sophistication was shown in concealing evidence of the commission of the crime."

Judge Motto further wrote, "Experts from both the defendant and the Commonwealth have agreed that in order for rehabilitation to occur in the Juvenile Court System, Defendant must take responsibility for the offense and at this juncture, has failed to do so."

Forty-two states authorize sentencing juveniles to life without parole(LWOP). Fourteen states allow a minor to be tried as an adult at any age. Pennsylvania allows a child of any age to be tried as an adult for murder. Pennsylvania also leads the nation in juveniles serving LWOP. Pennsylvania has at least 330 offenders who were sentenced to LWOP as juveniles. Across the country more than 2,250 offenders are serving life sentences in adult prison for crimes committed as minors.

Friday, March 26, 2010

Legal fees be damned says the Georgia Supreme Court in a recent death penalty decision. Jamie Weis has been in jail for more than three years awaiting trial for the murder a 73 year-old woman. The state has run out of money to pay for Weis' defense.

The Supreme Court was asked to dismiss the charges or order the state to forgo seeking the death penalty. The Court did neither and apparently Mr. Weis will stay in jail until an attorney proceeds on his behalf pro bono or the state gets some money.

According to the Atlanta Journal-Constitution, Wies had two court appointed attorneys. The state ran out of money so a judge appointed two full-time public defenders. Weis refused to cooperate with the public defenders and they withdrew. Money was later earmarked for private counsel, but never actually paid. Thus Weis sits in prison without counsel.

The majority opinion suggested that if Weis had a problem with the competency of counsel--one public defender was not death penalty certified--he could raise the issue on appeal, after he was convicted of murder. Probably not Weis' best option.

The dissenting opinion suggested, "The bottom line here is that the state should not be allowed to fully arm it prosecutors while it hamstrings the defense and blames defendant for any resultant delay." Unfortunately for Weis, that option got only three of seven votes on the Georgia Supreme Court.

Murders are up sharply in New York City this year, with startling increases in gun crimes across the city, reports the New York Daily News. The citywide murder total increased 22.8 percent in the first 11 weeks of the year over the same period in 2009, from 79 homicides to 97 as of March 21, 2010. Shootings are up citywide, with 293 people injured by gunfire this year, a 16.3 percent increase from the total of 252 recorded by March 21 last year.

There were 466 murders in New York last year, the lowest year-end total since the police department started its tracking method in 1963.

Police officials have long credited the dramatic recent drop in crime to Operation Impact, which floods felony-prone areas with uniformed rookies. Police Commissioner Raymond Kelly has warned that proposed budget cuts could further imperil NYPD's effectiveness by reducing manpower.

Thursday, March 25, 2010

The U.S. Supreme Court has agreed to hear the Orleans Parish District Attorney’s Office appeal of John Thompson’s $14 million verdict, Connick v. Thompson, 09-571. The suit alleged that Thompson’s civil rights were violated when the DA’s office failed to train prosecutors regarding their responsiblities under Brady v. Maryland, 373 U.S. 83 (1963).

Last term the U.S. Supreme Court decided Van de Kamp v. Goldstein, 555 U.S.___ (2009). The court unanimously extended absolute immunity to claims that supervising prosecutors failed to train line prosecutors on their obligation to disclose impeachment evidence as required by Giglio v.United States, 405 U.S. 150 (1972). The High Court held, individual prosecutors are immune from suits alleging failure “to adequately train and supervise deputy district attorneys” on disclosure obligations, and “failure to create any system” for managing impeachment evidence.

The Supreme Court is now being asked to decide whether a single-incident, failure-to-train claim that is covered by absolute immunity for an individual prosecutor pursuant to Van de Kamp, can stand against a district attorney’s office, pursuant to a 1983 civil rights action.

My Take

Holding an office liable for the conduct of its occupants, when those occupants individually have absolute immunity appears to abrogate the very holding of Van de Kamp. If a district attorney’s office was subject to the same litigation that is barred against its employees, how are those individual prosecutors protected from the “judgment-distorting burdens of litigation” protected through Van de Kamp?

Wednesday, March 24, 2010

Andy Sheehan of KDKA-TV is reporting that the investigation of the sexual assault against Pittsburgh Steeler quarterback Ben Roethlisberger may be hitting a dead end. A 20 year-old college student has accused Roethlisberger of sexually assaulting her in the bathroom of a Georgia bar on March 5, 2010.

The Georgia Bureau of Investigation originally requested a blood sample from Roethlisberger for purposes of DNA testing. According to Roethlisberger's attorney, Ed Garland, the police are no longer requesting a blood sample from Roethlisberger.

Normally, the police would have physical evidence if they request a DNA sample. There must be something to compare the DNA sample with. Now that the police no longer need a DNA sample indicates that the police do not have physical evidence to make a comparison. The original request may have been premature and could cause serious problems for the prosecution down the road.

KDKA's Sheehan is also reporting that the alleged victim is no longer cooperating with authorities. Apparently she failed to show up for a police interview last week and has not been interviewed since the initial complaint. Without the victim's cooperation this case is going nowhere.

First, it is disclosed that there is no physical evidence linking Roethlisberger with any crime and later it is learned that the alleged victim is uncooperative. Neither is fatal by itself but together they make the filing of criminal charges extremely unlikely.

Tuesday, March 23, 2010

One of the nation's oldest state prisons is the 148 year-old Nevada State Prison at Carson City. The prison requires three times as many guard per inmate as a modern prison. The prison remains operational in spite of having sufficient bed-space in other facilities to easily house Carson City's 800 inmates.

The state doesn't need Carson City Prison. Governor Jim Gibbons doesn't want Carson City Prison. The Department of Corrections suggested that closing Carson City Prison will save Nevada taxpayers $12 million per year.

Nevada has a $900 million budget deficit, yet Carson City Prison won't be torn down or moth-balled or phased out. Why? The political pressure applied by the corrections officers union. The union argued that state employees have sacrificed enough through earlier budget cuts. The community is dependent on the 136 jobs that Carson City Prison provides. According to the USA Today, Carson city's unemployment rate is 12.7-percent, more than double the pre-recession unemployment rate of 5.6-percent.

Apparently, what's good for the state is not good for Carson City and for the time being Carson City is winning.

My Take

In the last years of Dwight D. Eisenhower's presidency he warned of the dangers of the burgeoning "military industrial complex." Communities became so dependent on military production and military bases that closing bases or ending defense contracts became a political hot-potato. Communities and their elected leaders lobbied hard to keep bases open and defense contracts coming to local manufacturers.

The "prison industrial complex" is the product of a 705-percent increase in prison population over the last 38 years. Communities have become so dependent on the employment and revenue provided by prisons that the prison industrial complex is headed in the same direction as the military industrial complex.

Nevada created the Spending and Government Efficiency Commission to explore cost cutting measures across the board in state government. The commission strongly recommended closing Carson City Prison. Government leaders know that Carson City Prison should be closed, but buckled to local pressure to keep an obsolete, unneeded prison. Nevada is a clear example of the tail waging the dog.

Look for states like Texas and California to create commissions specifically for purposes of closing state prisons. Ongoing budget shortfalls have brought about innovative, and at times expedient, ways to reduce prison population. At some point prisons will need to be closed with the resulting loss of much needed jobs. At that point, battle-lines will be drawn and the political theater will begin.

Lobbyists will be hired, citizen groups will be organized and lawmakers will raise their finger to see which way the political winds are blowing. Efficiency and best practices will take a back seat to political influence. The long and wasteful process utilized by the federal government to close military bases will be used by state governments to close unneeded prisons.

Monday, March 22, 2010

State prison population decreased in 2009. This is the first decline in 38 years. The Pew Center on the States released a survey last week that found a 0.4-percent reduction in state prisoners between December 31, 2008 and January 1, 2010. That represents the first annual decrease in state prison population since 1972.

The Pew Center found that 27 states realized a decrease in population, while 23 states increased their prison population. Indiana led the nation in proportional terms with a 5.3-percent increase.

Pennsylvania led the nation in actual prisoner increases. Pennsylvania added 2,122 new inmates to its 2008 total. Pennsylvania's prison growth has been astounding. Between 1980 and 2009, Pennsylvania's prison population grew from about 8,000 to more than 51,000.

There are only six states with more prisoners than Pennsylvania. Of those six states, only Florida and Georgia had an increase in prison population last year. California, New York, Ohio and Texas had a decrease in population.

Why the decline? The Pew Center suggests a number of reasons. Initially, declining state budgets. The loss of revenue had many states rethink some of their tough on crime history. Secondly, there is the suggestion that more evidence-based practices have reduced prison populations by targeting less serious offenders for diversion from prison. Lastly, some attribute the decline to a less aggressive posture with regard to technical parole violators.

Pennsylvania is going in a different direction than a majority of other states. The state plans to build four new prison to house the increasing number of inmates. The Philadelphia Inquirer reported that Corrections Secretary Jeffrey A. Beard told lawmakers that if the prison population keeps growing, the four prisons under construction will be at capacity when they open.

More prisons mean more operating costs. The Corrections Department has requested $1.9 billion in state funding for fiscal 2011. That is an 8.5 percent increase over its $1.75 billion budget this fiscal year.

Sunday, March 21, 2010

Walter Barclay was a 23 year-old Philadelphia police officer in 1966. On a late November night, he was responding to a burglary call when he was shot by William J. Barnes. Barclay was left paralyzed from the waste down. Barnes ended up in prison and wasn't released until 2005.

A tragic story of two men. One left to live his life in a wheelchair the other left to live nearly his entire adult life behind bars. The case took an unusual twist in 2007. While Barnes was living in a halfway house, Barclay died. The coroner determined that Barclay's death was a direct result of his 41 year-old wounds.

The Philadelphia district attorney's office decided to charge Barnes with murder. The new charges are not bared by the double jeopardy clause of the U.S. or state constitution. He was convicted of attempted murder and assault. The new charge is murder. The "year and a day rule," which required that charges of murder must be brought within 366 days of the initial assault, has long been an obsolete legal relic in Pennsylvania.

The trial is scheduled for May. The charges have garnered national interest and it looks like the trial will do the same. The experts who will testify at trial sound like a who's who of Nancy Grace's guest list. The defense will call Cyril H. Wecht, the former coroner from Pittsburgh. Wecht has worked on the assassination of JFK as well as examined the deaths of Elvis Presley, JonBenet Ramsey, and Vincent Foster.

The Commonwealth intends to call Michael Baden from New York. Baden is the star of the HBO series Autopsy and an expert for the congressional probes of the murders of President Kennedy and the Rev. Dr. Martin Luther King Jr.

According to the Philadelphia Inquirer, the judge presiding over the trial has focused much of the preparation for trial on the superstar experts. "This is a real duel of experts. That's what it's all about," Philadelphia Common Pleas Court Judge Renee Cardwell Hughes told prosecution and defense attorneys during a recent pretrial hearing. "We don't need days and days of testimony," Hughes said. "We just need to set the stage for the experts."

The trial will not be televised because Pennsylvania law prohibits cameras in the courtroom. However, absent a gag order there will be a press conference before, after and if possible while the testimony unfolds. Wecht and Baden have never been known to shy away from a camera.

Saturday, March 20, 2010

Monday's blog explored the use of deportation to alleviate prison crowding and budget deficits. The Texas plan was to release nearly 11,400 foreign nationals by turning them over to U.S. Immigrations and Customs Enforcement officials for deportation.

The Courthouse News Service reported that the federal government holds 210,000 people in prison. Roughly 18 percent of the inmates are housed in private prisons run by contractors. The other 172,000 inmates are squeezed into government facilities that only have a listed capacity of 126,000 beds, which means the buildings hold 37-percent more prisoners than their designs allow.

Federal prison director Harley Lappin said the prison population is expected to grow by an additional 7,000 members next year. This represent a 3-percent increase in prisoners, while state prisons realized a half a percent decrease last year.

The increase in federal prisoners can be attributed to a 45-percent increase in the last two years of people booked for immigration crimes. Lappin noted that countries like Vietnam and Cuba refuse to take back their convicted citizens, leaving the United States to hold some foreign nationals indefinitely. More than a quarter of the federal prisoners, about 55,000, are non-citizens.

My Take

Texas is contemplating a shell game with the federal government. Texas proposes pushing its imprisoned foreign nationals off on the federal government that does not have the capacity to manage more prisoners. The move won't save taxpayers any money, it merely pushes the burden off to the federal government. That obligation will be returned to taxpayers in the form of federal taxes.

The parochial nature of Texas' efforts point to a misguided legislature that is more worried about getting re-elected than tackling important issues in a meaningful way. Unfortunately, this is not unique to the Texas legislature. As long as policymakers insist on being "tough on crime" without generating the "dime," state governments will continue to generate absurd policy to deal with difficult situations.

Thursday, March 18, 2010

John A. Rich a physician, a professor at Drexel University and former director of the Boston Public Health Commission has written an interesting book on violence among young black men. Rich's book, Wrong Place, Wrong Time:Trauma and Violence in the Lives of Young Black Men, provides a vivid look at the cause and effect of violence in troubled neighborhoods.

The background statistics are astounding. The homicide rate for black males ages 15-24 is 92 deaths per 100,000 people. The homicide rate for white males the same age is 4.7 per 100,000. The homicide rate for young black men is 19 times higher than young white men.

Rich makes clear that "homicide is only the tip of the iceberg." The book is not about homicide and when you look at the pervasive nature of non-lethal trauma you understand why. For every murder in this country there are 94 non-lethal assaults. There are four non-fatal gunshot victims for every murder; 64 non-fatal stabbings for every lethal stabbing; and 3,243 non-fatal assaults for every deadly assault. There are over 1.6 million victims of non-fatal shootings, stabbings or assaults every year in this country.

As Rich delves into the personal stories of traumatic gunshot wound survivors, he begins to paint a vivid picture of how violence and trauma simply breed more violence and trauma. Young people who feel vulnerable seek out protection in the form of weapons, often firearms, to sooth their insecurities. The hyper-vigilance that comes with things like post traumatic stress disorder contribute to the cyclical nature of violence. Rich describes what drives these young men back to violent injury as "the hazy fog of trauma."

The numbers don't lie. Forty-five percent of young black men who receive a penetrating injury (gunshot or stab wound) receive a similar injury within five years--at some point 20-percent of those victims die of a subsequent penetrating injury.

Wrong Place, Wrong Time: Trauma and Violence in the Lives of Young Black MenJohn A. RichJohns Hopkins University

Wednesday, March 17, 2010

When does murder matter in Mexico? When it touches America. Last weekend's killing in Juarez of Lesley Enriquez, who worked at the U.S. Consulate, her husband, Arthur Redelfs, a corrections officer in El Paso, and Jorge Alberto SalcidoCeniceros, whose wife also worked at the consulate, brought murder too close to home for many Americans.

In the resort city of Acapulco, 17 people were murdered last Saturday including six police officers. The strife continues throughout Mexico as more than 50,000 Mexican army troops fight the major drug cartels for control of Mexico's future.

Juarez is just across the border from El Paso, Texas. Although El Paso has one of the lowest homicide rates of any big city in the U.S., there were only 13 murders in 2009, Juarez is one of the most deadly cities in the world.

Beto O'Rourke, an member of the El Paso city council, told the Houston Chronicle the killings might finally bring necessary attention to the violence.

“It's tragic and incredibly sad,” he said. “But the brutality and tragedy we saw this weekend are nothing new. What is new is that the killings involved people who work at the consulate, which is the symbol of American power and prestige.”

The volume and brutality of the murders in Mexico might be shocking to most residents of the U.S., but murder is no longer shocking in Juarez or just about any other city in Mexico. This past weekend alone, 28 people were killed in Juarez. Over the past two years, more than 4,000 people have been killed in Juarez's violent drug war. There have been 18,000 drug related murders throughout Mexico since President Felipe Calderon began his all out war against drug cartels.

Monday, March 15, 2010

The population of foreign citizens in Texas prisons is at an all-time high. According to the Austin American-Statesman the idea of deporting some percentage of foreign offenders is gaining some traction among lawmakers. The Texas plan is to release nearly 11,400 foreign nationals by turning them over to U.S. Immigrations and Customs Enforcement officials for deportation.

"It could mean a lot of jobs, economic development, because the federal government will have to find a place to put them before they deport them," said state Senator Eddie Lucio. He said that Immigrations and Customs Enforcement would need additional holding facilities for the soon-to-be deported criminals and that federal money might be available to pay for them and the jobs they would create.

"This could be a win-win situation for Texas," Lucio told the American-Statesman, noting that South Texas might benefit from such a program since that's where many federal immigration detention centers are located.

My Take

Texas cannot not solve their financial woes by deporting foreign nationals. In fact, their plan to make money by transferring inmates to the federal system and then charging the feds for housing them is a pipe dream.

More importantly, the plan will make Texas a more dangerous place. An investigation by the Arizona Republic found that 16-percent of deported criminals re-enter the United States. In fiscal year 2008, 16 percent of the 317,696 immigrants arrested by agents in Tucson, were charged with felony counts of re-entering illegally, either because they had prior felony convictions in the U.S. or previously had been formally deported. That is approximately 50,000 offenders. That represents more people than are currently incarcerated in Arizona.

The government does not have the resources to prosecute all of those felony re-entry cases. According to the Arizona Republic, most of those illegal re-entries were simply just deported and deported again.

The flaw in Texas' plan becomes painfully obvious, but it sounds good around election time when a candidate wants to be tough on crime, immigration and "fiscally" responsible.

The U.S. Supreme Court handed down two recent decisions that affect the rights of suspected offenders pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Both decisions went in favor of the government. The Court ruled that a suspect’s request for an attorney does not go on indefinitely and that a police officer does not need to use specific language to inform a suspect of his Miranda rights.
Miranda v. Arizona is the landmark Supreme Court decision that has become a part of American culture. Miranda’s conversion from legal holding to cultural icon is due mainly to the nation’s insatiable appetite for television crime dramas. Everyone with a TV has heard Miranda warnings; “You have the right to remain silent, anything you say can and will be used against you, you have the right to an attorney, if you can’t afford one, one will be appointed for you.”
What did Miranda do to earn his place in the American consciousness? In 1963, Ernesto Miranda was arrested for robbery. While in the midst of a custodial interrogation by police he confessed to raping an 18 year-old woman. At trial, prosecutors offered his confession into evidence. Miranda was convicted of rape and sentenced to 20 to 30 years in prison. Miranda appealed and his case made its way to the U.S. Supreme Court.
The Supreme Court ruled in favor of Miranda and suppressed his confession. The court imposed the following procedures to safeguard a suspect’s Fifth Amendment privilege against self-incrimination: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
Those rights have been printed on wallet sized cards and have been carried by police officers for more than 40 years. However, Miranda has been continually tested and at times expanded and restricted by the U.S. Supreme Court. The U.S. Supreme Court’s recent decisions are two in a long line of cases examining Miranda and its progeny.
Last month’s decision by the U.S. Supreme Court in Maryland v. Shatzer, No. 08-860 (2010) imposes a time limit on a presumption established by the Court nearly 30 years ago in Edwards v. Arizona, 451 U.S. 477 (1981).
In Edwards, the petitioner was questioned by the police until he said that he wanted an attorney. Questioning then ceased, but the next day, police officers returned to the jail to again talk with Edwards. The police informed him of his Miranda rights. He said he was willing to talk and police obtained his confession. The trial court denied Edward’s motion to suppress his confession. The appellant courts agreed.
The U.S. Supreme Court disagreed. In establishing the Edwards rule, the Court held once an accused invoked his right to have counsel present during custodial interrogation a valid waiver of that right could not be later established. The rule created a presumption that once a suspect invoked his right to the presence of counsel pursuant to Miranda, any waiver of that right in response to a subsequent police attempt at custodial interrogation was involuntary.
In Maryland v. Shatzer, Michael Shatzer was in prison when the police questioned him about the sexual assault of his son. After being read his Miranda warnings he invoked his right to legal counsel and the interrogation ceased. Thirty-months later the police returned to interview him. Shatzer was, again, Mirandized and confessed to assaulting his son. Shatzer appealed and his confession was tossed out by the state court pursuant to the Edwards rule.
Justice Antonin Scalia, writing on behalf of the majority in Shatzer, wrote that the Edwards rule should not act as an “eternal” bar against further police questioning. Scalia believed that the thirty-month break in custody was enough. However, Scalia went further. Those suspects, who have been released from custodial interrogation for at least 14 days, could be returned to custody and if they did not again invoke counsel could be interrogated and any inculpatory statement could be used at trial. Shatzer does not overrule Edwards, but appears to provide a time frame to rebut the presumption created by Edwards.
The Court’s bright-line rule of 14 days in Shatzer is surprising in light of the Court’s decision one day earlier in Florida v. Powell, No. 08-1175 (2010). Kevin Powell was arrested in 2004 by the Tampa Police. He was taken into custody during a robbery investigation. A gun was later found in his girlfriend’s apartment. Powell was prohibited from possessing a firearm due to his history of felony convictions. After he was told by police that he had, “The right to a lawyer before answering any of our questions,” he confessed, without counsel, to having the gun.
Powell successfully had his confession suppressed by the trial court and the appellant courts agreed. The U.S. Supreme Court disagreed. In an opinion written for a 7-2 majority, Justice Ruth Bader Ginsburg wrote, “The four warnings Miranda requires are invariable, but this court has not dictated the words in which the essential information must be conveyed.”
Justice Ginsburg went on to write that a police officer’s warnings need not have the precision of a legal document, “But we decline to declare its precise formulation necessary to meet Miranda’s requirements.” The Supreme Court left it to the lower courts to decide, when police officers ad lib, if the Miranda warnings are adequate.
When contrasting the two decisions, handed down only 24 hours apart, it is striking to see how the Court went in two very different directions. On one day the court declines to add precision to probably the best known legal language ever established by the Court and literally the next day the Court establishes an arbitrary bright-line rule for conducting custodial interrogations.
The Court could have done exactly the opposite and been quite reasonable in doing so. The court could have ruled that the iconic language of Miranda must be uttered with precision and that the lower courts can decide on a case-by-case basis a reasonable time between the first and second custodial interrogation.

Dwayne Carter a.k.a. Lil Wayne, a rap star, was scheduled for sentencing last week in a New York courtroom. He had pled guilty to attempted criminal possession of a weapon. Although his sentence hearing was postponed, Carter is expected to receive a one-year sentence to be served at Riker’s Island Prison.
As the New York prison system gets ready to house yet another celebrity prisoner—recent celebrities included ex-New York Giant Plaxico Burress, Soprano’s star Lillo Brancato, Jr. and female rapper Foxy Brown—everyone’s focused on how to best accommodate high profile inmates. ''It's a challenge,'' said Martin Horn, a former commissioner of corrections in New York City. Horn told the New York Times, ''It's not about setting (a celebrity) on a bed of roses, but it is about an obligation to every inmate to keep him safe.''
Forgotten in all of this is the safety, security, and well being of the victims. Some might say that Carter and Burress committed victimless crimes. After all, Burress shot himself and Carter did not discharge his .40- caliber handgun he merely had it on his tour bus. However, in the wake of this conduct, and most criminal activity, are the children of the offenders. They are victims too. Carter has four children, three born within the last 16 months. Burress has two children.
Children of incarcerated parents are growing at a faster rate than the nation’s prison population. In 2008, the Pew Charitable Trust released a report that found 1 in every 100 adults in America are in prison or jail. The report generated a great deal of attention.
The Pew report overshadowed a report by the U.S. Department of Justice (DOJ) that was released about the same time. The DOJ report, Parents in Prison and Their Minor Children, found that more than 1.7 million minor children, or about 1 in 43, have one or both parents behind bars.
The rate of children with an incarcerated parent has soared. Between 1991 and 2007, children with a parent in jail or prison have increased by 82-percent. The average age of a child with an incarcerated parent is 8 years-old.
The impact of incarceration on children is usually first observed in school. In a 2006 report, Effects of Parental Incarceration on Young Children, 50-percent of children of incarcerated parents had school problems. These problems manifested themselves in poor grades and aggression. Middle school and high school aged children received more suspensions and ultimately dropped out of school at higher rates than their contemporaries.
Why should policymakers be concerned about children of incarcerated parents? Educational failure is a precursor to criminal activity. According to a 2006 study, Saving the Children of Prisoners, children of incarcerated parents are 6 to 10 times more likely to end up in prison than the average young person.
There is also growing concern over the increase in mothers facing incarceration. The number of incarcerated mothers has increased by 122-percent since 1991. The hardships that befall single mothers facing incarceration, and their children, are particularly alarming.
A 2008 report released by the Sentencing Project, Incarcerated Parents and Their Children, presented the plight of incarcerated mothers in a compelling manner. The Adoption and Safe Families Act, passed in 1997 provides for the termination of parental rights if a child has been in foster care 15 of the previous 22 months. Since most prison sentences exceed that time, incarcerated mothers risk losing custody of their children permanently. Not surprisingly, women inmates report having children in foster care five times as often as male inmates.
Not every child of an incarcerated parent had a parent removed from an intact family and sent off to jail. In fact, according to the DOJ, fewer than half of parents in state prison lived with their minor children before coming to prison. However, for those children who lose a custodial parent, even temporarily, the results can be devastating for the child and down the road a potential threat to public safety.

Saturday, March 13, 2010

Harris County, Texas sends more inmates to death row than any other county in the nation. Last week, a judge in Harris County declared the death penalty unconstitutional. The ruling came in response to a number of pretrial motions filed on behalf of John Edward Green Jr., who is pending trial on a 2008 robbery, murder of a woman and the wounding of her sister.

State District Judge Kevin Fine made the ruling, saying he could assume that innocent people have been executed. Judge Fine didn't seem to be bothered by the fact that as a trial judge he really has no authority to make a ruling overturning the death penalty. The decision is a bit strange and apparently so is the judge. According to the Associated Press, Fine is heavily tattooed and campaigned for judge as a recovering alcoholic and former cocaine user.

The judge's ruling has generated a great deal of attention, not much of it favorable. Apparently, this free wheeling jurist isn't immune to criticism. He has now withdrawn his opinion and has scheduled a hearing on the motion to rule the death penalty unconstitutional.

Judge Fine took back his controversial ruling and asked Harris County prosecutors and defense attorneys to submit motions on the issue. Fine will then have an evidentiary hearing April 27, when the court will hear testimony on whether innocent people have been executed in Texas.

Casey Keirnan, one of Green's defense attorneys, told the Associated Press that the case is "headed in the exact direction we want it to go."

"This is the very first legal proceeding where a court is going to look into the issue as to whether or not we have executed innocent people in Texas," Keirnan said. "It's now taken on a life I've never dreamed it would. It's so amazing to me."

My Take

Keirnan is right about one thing--this is amazing. A renegade judge makes an irresponsible ruling to generate attention for himself and a cause--the abolition of the death penalty. However, it's clear that even those opposed to the death penalty are leery of Fine.

A tattooed, former party boy, "activist judge" will not be welcomed as the face of the anti-death penalty movement. His ruling will also ignite the passions of every politician who wants to win an election on the "law and order" ticket.

Judge Fine's ruling, and its subsequent rescission, may ultimately do more harm than good for the anti-death penalty movement.

Thursday, March 11, 2010

Is the death penalty merely out of vogue or has its usefulness been mitigated to the point that it is no longer an appropriate punishment? The death penalty has fallen in and out of favor over the last two centuries. The death penalty waned prior to the civil war. There was a resurgence in the late 19th century and then capital punishment fell out of favor in the first quarter of the 20th century.

In the 1940's, the death penalty was reenergized only to decline in use in the 1950's and 1960's. In the Mid-1970's, the death penalty was outlawed by the U.S. Supreme Court. However in 1976, capital punishment was back and there was a resurgence in the 1990's as violent crime rates soared. The four busiest years for the modern death penalty were 1997 through 2000, when the nation averaged 81 executions per year.

There have been 1,196 executions since 1976. Texas was responsible for 450 of those executions. Virginia was a distant second with 105.

The Crime Report has an interesting take on why Texas and Virginia represent a turning point in capital punishment. Instead of looking at executions--Texas carried out almost half of all executions last year--the Crime Report suggests looking at the number of executions imposed. Texas imposed only nine death sentences in 2009. The lowest number since 1976. Virginia has imposed only one death sentence in the last two years.

During the mid-1990's Texas was averaging 48 death sentences per year. Last year, Texas tried only 32 death penalty cases and five were actually re-trials.

My Take

Some legal observers suggest the life without parole (LWOP) and concern over wrongful convictions have fueled the skepticism about imposing the death penalty. Juries may be more comfortable with the idea that a convicted killer will serve LWOP and at the same time eliminate the chance of a wrongful execution.

Would juries be interested in knowing that there are organized efforts to eliminate LWOP? A killer convicted to life in prison might some day walk the street. There are also efforts in states such as Kansas, New Hampshire and Colorado to rescind the death penalty due to growing costs and dwindling resources.

Financial impact is playing a more meaningful role in legislative action regarding the criminal justice system. It is not just the death penalty, but prison crowding, sentencing schemes, policing, treatment and rehabilitation. Will the financial concerns impact community safety? Unfortunately, only time, and the possiblity of more victims, will tell.

Wednesday, March 10, 2010

According to KDKA.com, Ben Roethlisberger admitted to police on the night of the alleged sexual assault that he had consensual contact with his accuser, a 20 year-old college student.

Georgia authorities have also requested than Roethlisberger submit a blood sample for DNA testing. This seems to suggest that there is some physical evidence for a DNA comparison.

Finally, the Pittsburgh Post-Gazette is reporting that two Pittsburgh area off-duty police officers were traveling with Roethlisberger. Neither officer has been interviewed by Georgia authorities. Roethlisberger's attorney Ed Garland reports he has assembled an investigation team of his own.

Tuesday, March 9, 2010

In light of the allegations made against Pittsburgh Steeler quarterback Ben Roethlisberger here is a quick rundown on Georgia law as compared to the Pennsylvania Crimes Code. CAVEAT: In Georgia, Pennsylvania and every other state an accused is presumed innocent until proven guilty beyond a reasonable doubt.

Rape: Both Georgia and Pennsylvania have a rape statute. Both require engaging in sexual intercourse by force. It is worth noting that Georgia is the last state to sentence an offender to death for raping an adult.

Aggravated Sodomy: In Pennsylvania it is known as involuntary deviate sexual intercourse. Georgia defines it as contact between the sex organ of one person coming in contact with the mouth or anus of another person by force.

Aggravated Sexual Battery: In Pennsylvania this would be considered Aggravated Indecent Assault. In Georgia this is referred to as penetration of a sex organ with an object. This would more often than not be digital (finger) penetration.

Sexual Battery: In Pennsylvania this would be equivalent to Indecent Assault. In Georgia this is intentionally making contact" with a body part such as buttocks or breast.

Monday, March 8, 2010

This past Sunday, the Memphis Commercial Appeal reported that a unique long term study of recidivism rates found the problem to be worse than many had suspected. The study revealed that recidivism rates can be as high 94-percent for some inmates.

The numbers are part of a 20-year study, tracking inmates who were first jailed between 1987 and 1991, says psychologist Dr. Greg Little.

Little and psychologist Dr. Kenneth Robinson, founders of Correctional Counseling Inc., were trying out a new treatment program in 1987 and began tracking inmates to compare their results with those of inmates who went through only standard counseling. They followed each inmate, recording every re-arrest and every re-incarceration.

Tennessee Department of Correction studies show recidivism rates of about 51-percent over a three-year period, and national studies show recidivism averages of roughly 65-percent over three years. The study followed 1,381 inmates who first served time at the Shelby County (TN) Correction Center between 1987 and 1991. Some were taking part in Little's new treatment program . There were 1,052 inmates who used moral reconation therapy (MRT) and 329 inmates in a comparison group who received only standard therapy.

Results of the 20-year study included:

About 94-percent of inmates receiving only standard counseling had been rearrested and 82-percent of them wound up back behind bars.

Those receiving MRT therapy, had an 81-percent rearrest rate and 61-percent were rearrested. It was reduction of about 25-percent from the group that did not receive MRT therapy.

Saturday, March 6, 2010

Last week, the New York Times wrote about states that are reconsidering early release for prisoners as a means to save money in difficult economic times. The Times cited fours states reassessing early release.

1. Illinois--the governor described the early release plan as "a big mistake."

2. Colorado--the state thought they would save $19 million. In reality, they have released only 264 out of projected 2,600 inmates.

3. California--a victims rights group has sued to block the use of credit to reduce sentences.

4. Michigan--Prosecutors are challenging the early release of some inmates.

The public is demanding less spending, fewer taxes and the same level of security. Something has to give. It cost money to be tough on crime. What are voters willing to sacrifice to lock-up more offenders?

Thursday, March 4, 2010

The use of residency restrictions for sex offenders has become controversial. Recent studies have found that not only do such restrictions not work, they may even expose families to greater danger.

Some states with residency restrictions, including Iowa, Florida and Ohio, have conducted studies that have concluded that residency laws are actually counterproductive and often destabilize the offender. A 2009 study by Ohio State University found that residency restrictions may inadvertently exacerbate the factors correlated with recidivism. http://dcj.state.co.us/odvsom/Sex_Offender/SO_Pdfs/Residence%20Restrictions.PP.pdf

Although the evidence regarding residency restrictions seems clear, not all policymakers agree. Recent news reports show that state and local lawmakers are going in many different directions.

Wisconsin lawmakers are contemplating enacting statewide residency restrictions. The proposed bill would supersede the patchwork of local ordinances. Green Bay, for instance, has an ordinance that limits certain offenders from living almost anywhere in the city. The ripple effect of the ordinance has caused neighboring communities to enact restrictions to prevent the migration of sex offenders to the suburbs.

In New Hampshire, the legislature is considering a bill that would prevent communities form establishing residency restrictions for sex offenders. The bill is in response to a court decision regarding the city of Dover's ordinance, which prohibited registered sex offenders from living within 2,500 feet of a school or day care center. The court found the ordinance unconstitutional in last summer after a challenge by the New Hampshire Civil Liberties Union. "It's dangerous to restrict residency for sex offenders because it diminishes law enforcement's ability to track these offenders," said Representative Beth Rodd.

In California, the state paid $126,000 to relocate a sexually violent predator to a lightly populated desert community, according to the USA Today. His relocation last September to this remote area came about after a doctor, and then a judge in 2007 determined that the offender was no longer a danger to others. The judge determined with supervision and treatment he could be released to the community. Prior to that determination he was civilly committed to a state hospital for an indefinite period of time.

A Pittsburgh City Council member, Vince Gastgeb, has an even more draconian idea. The city already has a restrictive sex offender residency ordinance. Gastgeb is proposing that all registered sex offender be continuously monitored by global positioning satellite. Pittsburgh is a city in financial distress. GPS might sound good to Gastgeb constituents, but certainly isn't practical.

Each of these decisions or proposals have generated support or anger in the community and are clear examples of the issues states and local communities face as they pass or refine laws regarding released sex offenders and where and how they can live in the community.

Wednesday, March 3, 2010

Fresh off of two recent Miranda decisions the U.S. Supreme Court was back at it this week. On Monday, the High Court heard arguments in another Miranda case. This time the Court must decide whether a suspect's silence is itself enough to invoke his right to remain silent. Sound a little confusing? Obviously, there had to be a break in silence if the suspect "said" something incriminating.

Van Chester Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

The officers in the room testified that Thompkins said little during the interrogation, occasionally answering "yes," ''no," ''I don't know." When one of the officers asked him if he prayed for forgiveness for "shooting that boy down," Thompkins said, "Yes."

He was convicted, but on appeal he requested that his statement be thrown out because he invoked his Miranda right to remain silent by his silence. The court of appeals agreed and threw out his confession.

According to the Associated Press, several Supreme Court justices indicated during Monday's argument that they might let the confession stand, saying suspects should tell police that they want to be silent to take advantage of that Miranda right.

"Why don't we have just a clear rule: You are read your rights; if you don't want to be questioned, all you have to say is 'I don't want to be questioned'?" Justice Antonin Scalia said. Last week Justice Scalia, writing on behalf of the majority in Maryland V. Shatzer, 08-860, set a clear rule of 14 days to rebut a presumption for invoking counsel as set forth in Edwards v. Arizona, 451 U.S. 477 (1981).

Other justices saw problems with that rule, saying police should have known that Thompkins didn't want to cooperate by his lack of cooperation. "It's at least arguable that his silence indicated he wished to remain silent," Justice John Paul Stevens said.

My Take

It will be interesting to see if the Court provides some specificity as it did in Shatzer or takes a more hands-off approach as the Court did with last week's other Miranda decision in Florida v. Powell, 08-1175. It would appear, based on Justice Scalia's question, that at least he would be interested in a specific rule requiring some audible response to invoking the right to remain silent.

Tuesday, March 2, 2010

The Oklahoman reported that the Oklahoma House voted 91-2 to force repeat child molesters to face possible penalties of life in prison or death.

Under current law, a child molester can face a sentence of 25 years to life in prison for a first offense. The new legislation will increase the penalty to include a maximum sentence of life without parole.

It would also allow repeat offenders to face life without parole or the death penalty.

Representative Rex Duncan says the death penalty is reserved for the worst of the worst criminals. He says he believes people with a history of violently raping children fall into that category.

Oklahoma legislators obviously forgot about the 2008 U.S. Supreme Courts decision in Kennedy v. Louisiana. According to the New York Times, the Courts 5-to-4 decision overturned death penalty laws in Louisiana and five other states including Oklahoma. The court went beyond the question in the case-imposing the death penalty for child rape-to rule out the death penalty for any individual crime . . . where the victim’s life was not taken.

The case was an appeal by a Louisiana inmate, Patrick Kennedy. He was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter, whose injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Mr. Kennedy’s conviction and rejected his challenge to the constitutionality of his sentence. The High Court prohibited imposing the death penalty for child rape.

My Take

Oklahoma's effort to impose the death penalty on multiple child rapists is pure political theater. The legislature knows that the U.S. Supreme Court has outlawed the death penalty for anything short of murder. The High Court would never let the state execute a child rapist.

However, the near unanimous vote on the issue sure makes House members look like no nonsense crime fighters. The reality is those same "lock 'em up" lawmakers are taking time and resources away from issues that could really make a difference to their constituents.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.